Ritchie v. Salvatore Gatto Partners, L.P. – 1/5/2010

January 26, 2010

Arizona Court of Appeals Division One Holds That A Party Who Redeems a Tax Lien Before Completion of Service of Process by Publication in a Foreclosure Action Is Not Liable for Plaintiff’s Costs and Fees.

Plaintiff, who owned a tax lien certificate of purchase for property in Mohave County, initiated an action for judicial foreclosure of the right of redemption pursuant to A.R.S. § 42-18201.  Plaintiff initiated service of process for the action by publication, once per week for four weeks, in a local newspaper.  See Rule 4.1(n), Ariz. R. Civ. P. (service of process by publication).  Before the four weeks of publication were complete, a property owner redeemed the tax lien pursuant to A.R.S. § 42-18151.

Plaintiff sought an award of attorneys fees and costs under A.R.S. § 42-18206.  The property owner disputed whether the statute applied.  Following cross-motions for summary judgment and oral argument, the trial court ruled in Plaintiff’s favor, awarding costs and fees.  The property owner appealed.

The Court of Appeals reversed.  Under A.R.S. § 42-18206, a person who is entitled to redeem a tax lien may do so at any time before judgment is entered on a foreclosure action.  If, however, the redemption occurs after service of process, either personally or by publication, then the party redeeming the tax lien shall be required to pay the plaintiff’s costs, including a reasonable attorney fee.  Here, however, because the statutory prerequisite of service of process was not complete under Rule 4.1(n) when the tax lien was redeemed, the trial court erred by awarding costs and fees.         

Judge Winthrop authored the opinion; Judges Swann and Brown concurred.